AH head and starosta: powers, subordination and service relations

Author: Oleksandr Vrublevskyi, DESPRO expert adviser on issues of activity of starostas and cooperation of hromadas

With the enactment of the Law of Ukraine "On Voluntary Amalgamation of Hromadas", a new official – starosta – appeared in the local self-government system. With its appearance a new kind of service relations (AH head ↔ starosta) arose in the amalgamated hromada.

This publication, based on the analysis of the provisions of the current legislation, considers the following issues:

What is common and different between an AH head and starosta in the context of their legal status and individual powers?

What type of service relations in terms of subordination (from Latin subordinatio – hierarchical arrangement) should exist between an AH head and starosta?

What is the reason for a stereotype, according to which a starosta is considered subordinate to an AH head?

The commonalities between the AH headand starosta is that both positions are elective. The head is elected by the entire amalgamated hromada, and the starosta – by the residents of the relevant starosta district. Both the AH head and starosta are entitled with a clear list of powers by the law. Posessing normatively established rights, each of them forms their legal status, which defines the directions and content of relations between the AH head and starosta in the local self-government system.

Another common feature between the AH head and starosta regarding participation in the executive committee meetings, chaired by a village, settlement, city head, is that each of them has the right to only one vote of approval. In other words, AH head, despite his chairmanship at the meeting of the executive committee, has no other advantages over the rest of members of the executive committee, including starosta.

The difference between the AH head and starosta is the volume of their authority, defined by the legislation on local self-government, and the territory to which their jurisdiction applies. Thus, the powers of head allow them to be implemented on the whole AH territory, whereas the jurisdiction of the starosta is mainly limited to the territory of the starosta district. Although the starosta has some powers exercised outside the starosta district, in particular:

participation in plenary meetings of the village, settlement, city council and meetings of its standing commissions;

right to a guaranteed speech at plenary meetings of the village, settlement, city council, meetings of its standing commissions on the issues concerning the interests of the residents of the village or settlement;

representation of interests of the residents of the respective village, settlement within the executive bodies of the village, settlement or city council through participation in the meetings of the executive committee (Part 5, Article 14-1, Clauses 1-3 of Article 54-1 of the Law of Ukraine "On Local Self-Government in Ukraine" (hereinafter referred to as the Law No 280/97-VR).

Starosta is mistakenly considered subordinate to the AH head. One of the reasons for this stereotype, in my opinion, is a literal interpretation of one of the powers of the village, settlement, city head, according to which he/she "organises the work of the relevant council and its executive committee within the limits, defined by the law. He steers the council apparatus and its executive committee" (Article 42, part 1, clause 4 of the Law No 280/97-VR). Therefore, some heads interpret the powers on managing the executive committee solely in their favour. Their logic is quite simple: if the head steers the executive committee, then the head is a leader, and all other members of the executive committee are his/her subordinates, and since starosta is a member of the executive committee, he/she is also subordinate to the head.

I presuppose that there will be those saying that starosta should be considered subordinate to the head, at least with due account of the fact that the head's instructions, decisions of the council and executive committee, signed by the head, are obligatory for execution by the starosta.

Firstly, regarding the decisions of the council and executive committee, signed by the head, they are acts of a collegial government authority, and not the head as a single power entity.

Secondly, when considering the instructions of the head, it should be noted that they have mainly internal organisational nature in their content and legal consequences, i.e. their main purpose is to normalise the service relations within the local self-government body and/or concerns procedural issues (to appoint, dismiss, authorise, assign, impose a disciplinary measure, etc.), or as a way of legal response of the head to a decision, taken by the council or executive committee, to terminate it.

Thirdly, if the head, for example, instructed to hold an extraordinary meeting of the executive committee, and the starosta attended it, this does not mean that the starosta is subordinate to the head, because he/she executed his administrative act. This merely indicates that the starosta performed actions aimed at implementing the powers entrusted to him/her to represent the interests of the residents of the respective village or settlement in the executive bodies of the village, settlement or city council, through participation in the meetings of the executive committee.

IT IS IMPORTANT TO KNOW!

Exclusively heads of departments, directorates and other executive bodies of the council, enterprises, institutions and organisations belonging to the communal ownership of the respective hromadas, except for the heads of preschool, general and extracurricular educational institutions,appointed by the AH head, should be considered subordinates to the head.

Thus, there are no legal grounds for considering a starosta to be subordinate to the AH head. This means that the type of service relations between the AH head and starosta should not be determined through subordination, since it should not exist a priori.

NOTE!

AnAH head may, if necessary, draw starostas’ attention to the need for proper exercise of certain powers by them, but in no case will it be required, as this would contradictwith the principles of the ethics of service communication.

In case of starosta’s violation of the Constitution of Ukraine or the laws of Ukraine, rights and freedoms of citizens, failure to exercise the powers granted to him/her, the AH head may submit the issue of termination of starosta’s powers for consideration by the councilat plenary meeting.

And finally, if the head of some AH is still convinced that starosta is his/her subordinate, and forms service relations with starosta on this principle, it is happening not by chance. It is a logical consequence of false understanding of ​​the true meaning of service relations with starosta. It also reflects the degree of legal awareness of the AH head, the level of his/her official culture and respect for starosta’s position.